ALJDEC

01F-T0190-ROC · Registrar of Contractors · 2001-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, April 10th, 2001; 9:00 a.m. APPEARANCES: The complainant, Mr. James B. McShea, appeared in his own behalf. The respondent, Catalina Vintage Development, Inc., appeared through its owner Mr. Steven Howard Johnson. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimonies were heard and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent in this case, Catalina Vintage development, Inc., is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 097731. 2. The respondent built complainant’s home. The complainant purchased his home from the respondent in November of 1997, and took possession of the house in September of 1998. Work was last performed on the house by the respondent on or about October 1st, 1999. 3. Complainant was dissatisfied with many aspects of the construction and filed the instant complaint with the Registrar of Contractors on August 25th, 2000. The complaint was assigned to Registrar of Contractors Inspector Richard C. Allen. 4. Inspector Allen conducted a job-site inspection in October of 2000, and issued his written Corrective Work Order to the respondent on October 20th, 2000. The CWO listed a total of six items. As of the date of this hearing, only item number six remained as a source of controversy between the parties. 5. It is important to note that according to the inspector’s own testimony the respondent has complied with the CWO. Item number 6 in the CWO was written as follows:

The door and door jamb at the utility closet has causing some stucco damage. The jamb has split at the upper hinge at an area where the jamb was fastened to the framing. A fingerjoint of the jamb has slipped near the lower hinge. I am unable to confirm the cause of the jamb failure. If the jamb failed due to being weakened by a split in the jamb while nailing to the framing, Catalina Vintage Development Inc. is responsible for repairs. If jamb failed solely due to an ‘act of God’ (wind damage), Catalina Vintage Development, Inc. is not responsible for repairs.

6. At the hearing it was not disputed between the parties that the door has been damaged. The only remaining dispute was what caused the door to be damaged. 7. The complainant’s position is that the door was damaged by wind blowing it when it was opened, but that the wind would not have damaged the door but for the respondent’s use of inadequate screws and hinges. The record contains two of the screws used and several photographs of the doors and hinges. The screws are 7/8” screws. 8. Respondent’s position is that the materials used for the door, including its screws and hinges, as well as the installation of the door, all are within industry and workmanship standards. The door was damaged, in the respondent’s view, by the wind and the wind alone. 9. Inspector Allen testified at the hearing. It was a part of his testimony that the materials and installation he saw when he conducted his inspection were within industry standards. Inspector Allen had nothing negative to say about the materials and installation in his CWO, nor did he have anything negative to say about them at the hearing. 10. As both parties agree and the evidence proves that the door was damaged the only issue is causation. Each party naturally has its own opinion on that head. The only disinterested evidence came from the inspector. His testimony weighs in favor of the respondent. Therefore, it cannot be found by a preponderance of the evidence of record that the door or its installation was defective. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32-1156 and A.R.S. §41-1092. 2. The respondent herein is charged in the instant citation and complaint with possible violations of A.R.S. §32-1154.A.2., 7., 23., and 3. 3. A.R.S. §32-1154.A.2., prohibits a licensed contractor from departing from or disregarding plans or specifications or building codes of the state or political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or his duly authorized representative, and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans specifications and codes. There is no evidence that the respondent violated this section. 4. A.R.S. §32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contractors laws of Arizona, without valid justification, within a reasonable period of time, after receiving written directive from the registrar. The written directive in this case is the CWO. The evidence shows no part of that CWO was not corrected within a reasonable period of time. Respondent did not violate this section. 5. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in this case is A.A.C. R4- 9-108, Workmanship Standards. The amount of evidence in favor of the complainant is insufficient to show that this rule was violated in regards to the door. It cannot therefore be concluded that the respondent violated this section. 6. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There is no evidence of fraud in this case, and no other issue besides the door, which is concluded in respondent’s favor. RECOMMENDED ORDER In view of foregoing Findings of Fact and Conclusions of Law it is hereby recommended that citation and complaint number T01-0190, together with the complaint on which it is based, be dismissed. Done this day, April 23rd, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of April, 2001, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488